161 F. 37 | 3rd Cir. | 1908
These are appeals in three separate suits, one against each of the dredges named. The suits are identical, and it was stipulated by the prosecutors of the respective parties, that the testimony taken in one of the above cases should be used in each of the others. The libels and answers are substantially the same, and in the court below, as here, the cases were argued together. The facts, as found by the court below, are briefly as follows :
There was no written contract between the parties. The libelant owned the tug boat “Harold,” which rendered *the services for which claim is made in the libels. In the fall of 1904, he made a verbal contract with Thomas Potter, the owner of the dredges “Alligator,” “Alligrippus,” and “Phoenix,” for the employment of his tug boat for general towing and waiting on the above-named dredges; the tug was to do whatever the captains of the dredges required, “such as getting coal and water, waiting on them in general, pumping scows and taking scows to them, and generally bring them away, and general work.” The dredges had no motive power of their own. The price agreed upon for the services between the libelant and the owner of the dredges, was $20 per day. The libelant claims that the services rendered by him under the above-named contract, amounted in all to the sum of $5,370, of which sum there still remains due a balance of $2,820; that of said sum of $5,370, there was due from the “Alligator,” for services rendered her $3,080, of which sum there has been paid on account $1,275, leaving $1,805 due; that from the “Alligrippus,” there was due for like services rendered her, $2,060, of which $1,275 had been paid on account, leaving $785 due; and that from the “Phoenix,” there was $230 due for like services. Payments on account were made by checks and notes, by Potter, to the order of the libelant. The payments were general, and without reference to the services rendered to any particular dredge, but they seem to have been arbitrarily applied by libelant, in the manner above stated.
The evidence on behalf of the libelant shows that the dates when the tug was engaged in the services of the dredges, were put down by
It may be conceded at once that the dredges are to be considered in admiralty as “vessels,” and as such, subject to the general maritime jurisdiction, and that the contract between the owner of the tug and the owner of the said dredges was a maritime contract. No claim is made, however, for the existence of a maritime lien against them, on the ground that they were other than domestic vessels. On the contrary, the learned counsel for the libelant contends, that the service was, so to speak, a technical towage service, and a necessary service, as rendered to vessels having no motive power of their own, and being clearly a maritime service, that there is, under the circumstances, a presumption that it was rendered oil the credit of the vessels, and that by the admiralty law a lien for the value thereof attaches, and that the burden lies oil the one who disputes the lien, to overthrow such presumption by satisfactory evidence. Moreover, it is contended that this presumption of lien exists independently of any question as to the foreign or domestic character of the vessels, and that in this respect the case differs from one in which there is a claim for a lien for supplies, where the question of domestic or foreign vessel becomes important, because, in the absence of a state statute or express agreement, there is no lien against a domestic vessel for supplies. We do not propose, nor is it necessary, to deny that there may be this general line of demarcation between claims for services and claims for supplies, with respect to the presumptions of liens arising therefor, or that generally a towage service is properly classified with a pilotage service, or with that of a seaman, and others, as to which there is a prima facie presumption of lien against the res to which the service was rendered. We must not, however, press too far such distinctions. They rest upon rules peculiar to the general admiralty law, as administered in the United States. This law imposes upon a vessel, as a consequence of certain situations and conditions, when established by evidence, the peculiar lien known as a maritime lien. Owing to the underlying
The lien to which the ship is thus subjected, is created, not so much for the benefit of the creditor, but for the benefit of commerce. Merchants and others are thereby encouraged to furnish supplies and render services necessary to the continuance of the ship’s voyage and to the commercial enterprise of which .she is the instrument. In the United States, at least, these reasons for creating a lien in the absence of- express contract, in judicial contemplation, cease to exist in the home port and with reference to a domestic vessel. The presumption, or rather the burden of proof, in such cases, therefore, is shifted, and when supplies are furnished to such a vessel, the burden is upon the furnisher, to show a mutual understanding that they were furnished on the credit of the vessel. As already observed, there are maritime services which are usually rendered under circumstances which make them so essential to the movement of a vessel, and to the performance of her primary function, as an instrument of commerce, that the admiralty law presumes they are rendered on the credit of the vessel, in the absence of proof to the contrary, and creates a maritime lien in their favor, independently of the question whether it be a domestic vessel, or nof. Notable examples are the lien for pilotage services, the lien for seamen’s wages, for towage services and for salvage services. The reasons for the rule in these cases are obvious, and arise out of the necessities of the situation. It would be an obstruction to commerce, as well as unreasonable, if a sailor were required to show a mutual understanding between himself and the captain, that there should be-a lien upon the vessel for his wages, or that the pilot who goes over the ship’s side as she approaches a port, or in a dangerous channel, should be called upon to show a .like mutual understanding. So in the case of salvage, much of the world’s wealth would be put in jeopardy, if the salvor could only claim a lien on the property saved, by showing a mutual understanding to that effect before the service was undertaken. The peculiar exigency of the situation in all these cases, supplies the reason for the rule of presumption of lien, as it has been long recognized in the administration of the general admiralty law. The exigency for such services, as are above enumerated, so generally exist, that the rule of presumption of lien is sometimes dissociated from the reason upon which it is founded. The service of a diver can be imagined as rendered under circumstances so exigent as to come within the reason of the rule of presumption of lien, as the service may have been necessary to prevent the immediate sinking of a vessel,
The towage of the dredges themselves are the least important part of the service. The contract between the owner of the tug and the owner of the dredges, was not for a single act of towage, but for a: continued service, at a compensation to be paid by the owner, at so-much per diem, and that service embraced other tilings than mere towage, being, as we have said, largely for “waiting upon” the dredges in the way of carrying coal, water, and other supplies from the shore to the dredges. It was, therefore, a mixed service in which, so far as towage was concerned, the towage of scows, not dredges, was that principally stipulated for. The service, therefore, was ’as different as possible from what is ordinarily called a towage service, as to which a presumption of lien obtains. The stipulated price of $20 a day, for “waiting upon” the dredges, indicates how different the conditions were from those which are considered as justifying a presumption of lieu. The charges against the separate dredges were arbitrarily-made upon statements of service, not to the dredges singly and separately, but, to them as grouped. It would be an abuse of the administration of the law of maritime lien, to decree a lien for services not clearly proved to have been entirely maritime and rendered to the par
It only remains to advert briefly to the last point urged by the appellant, viz., that even if the court should find that appellant’s contention, that there was a true maritime lien in this case, is erroneous, still, under the statute of New Jersey, there was a lien for services of the kind in question, performed within the state, which an admiralty court will enforce.
The material parts of the statute referred to are as follows:
“That whenever a debt shall be contracted by the master, owner, agent, _ or consignee of any ship or vessel within this state, for either of the following purposes:
“3. On account of the towing of such ship or vessel and the wharfage of such ship or vessel, and the expenses of keeping such ship or vessel in port, including expenses incurred in taking care of and employing persons to watch such ship or vessel; such debt shall be a lien upon said ship or vessel and the tackle, ,apparel and furniture, and continue to be a lien on the same until paid, and shall be preferred to all other liens thereon except mariners’ wages.”
Appellant makes this point for the first time in this court, and admits that this statute was not called to the attention of the court below. Conceding, for the sake of the argument, that libelant had a lien under the New Jersey statute, which could have been enfoixed in a court of admiralty, such lien was not asserted in the pleadings, or even alluded to in the proofs. It is true that, in a certain sense, a case in admiralty is heard de novo on appeal, but it is heard on the record as made in the court of first instance.
The allegations of the libels are very meager, and are only such as go to support the assertion of a maritime lien. There is not in them a single statement that would bring'the cases within the terms of the state statute. Neither the residence of the libelant, nor the place where the service was performed, is directly or indirectly alleged to be in the state of New Jersey. It may also be added that no proof was offered by the libelant as to these matters, though it would have been immaterial if he had done so. Though courts will take judicial notice of state statutes, it is hardly necessary to say that they will not undertake to make rights under such statutes justiceable before them, in the absence of the allegata and probata necessary to an issue and controversy in that behalf.
The decree of the court below is affirmed.